Loading...
HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 12/18/2012 - RESOLUTION 2012-118 APPROVING FEE AGREEMENTS BETWEDATE: December 18, 2012 STAFF: Rick Richter Steve Roy AGENDA ITEM SUMMARY FORT COLLINS CITY COUNCIL 15 SUBJECT Resolution 2012-118 Approving Fee Agreements Between the City and Certain Property Owners in the Community Activity Center Adjacent to the Interchange at the Interstate 25 and State Highway 392. EXECUTIVE SUMMARY On November 6, 2012, the City Council adopted Ordinance No. 117, 2012, establishing a special fee to be paid by the owners of certain properties located west of Interstate 25 and within close proximity to the reconstructed interchange at the intersection of Interstate 25 and State Highway 392. This ordinance included the option for the property owners to elect to enter into a settlement agreement with the City and the Town of Windsor as outlined in the attached draft agreements. The ordinance also required the property owners electing to enter into such agreement to notify the City Manager in writing of their desire to do so on or before November 30, 2012, and that the agreements need to be approved by the City Council on or before December 31, 2012. To date, the City has received written notice from all of the properties within the City’s jurisdiction electing to pay the fee pursuant to the terms and conditions of a written agreement with the City. This Resolution authorizes the Mayor to sign the agreements with the property owners. BACKGROUND / DISCUSSION City Council and the Windsor Town Board held five joint work sessions to discuss the I-25 and State Highway 392 Interchange Improvements, System Level Study (1601 Process), and design. The System Level Study for this interchange was approved by the CDOT Transportation Commission on January 21, 2009. This approval, along with a signed IGA, has allowed the Project to move into the final design and construction phases. The accelerated design process for this Project was completed in January 2010. The accelerated design process made this Project “shovel ready,” thereby enhancing the possibility of obtaining funding for construction. The design followed the intent of the guiding principles adopted by the City Council and the Town Board in August 2008, specifically the community character guiding principle that states: “The I-25/392 Interchange is an important ‘gateway’ feature for both Fort Collins and Windsor. It is viewed as Fort Collins’ southern gateway and the main gateway into the Town of Windsor. The design of the Interchange, sensitivity to view sheds and associated land development, shall enhance the gateway concept.” On November 6, 2012, the City Council adopted on Second Reading, Ordinance No. 117, 2012, establishing a special fee to be paid by the owners of certain properties located west of Interstate 25 and within close proximity to the reconstructed interchange at the intersection of Interstate 25 and State Highway 392. On November 13, 2012, the Town Board of Windsor adopted a similar ordinance establishing a special fee to be paid by certain properties located east of the Interchange and within the Windsor town limits. This ordinance included the option for the property owners to elect to enter into a settlement agreement with the City and the Town of Windsor on the terms and conditions described in the ordinance. The ordinance also required the property owners electing to enter into an agreement to notify the City Manager in writing of their desire to do so on or before November 30, 2012, and that the agreements need to be approved by the City Council on or before December 31, 2012. To date, the City has received written notice from all of the properties within the City’s jurisdiction electing to pay the fee pursuant to the terms and conditions of a written agreement with the City. Adoption of Resolution No.2012-118 would authorize the Mayor to sign the settlement agreements. December 18, 2012 -2- ITEM 15 FINANCIAL / ECONOMIC IMPACTS The approval of Resolution No.2012-118 will allow the City to recover 50% of the amounts the City has appropriated for the construction of the I-25 Interchange and local improvements in the Interchange area. ENVIRONMENTAL IMPACTS In 2008 the Fort Collins City Council and the Windsor Town Board adopted Joint Principles by resolution; the environmental sustainability language below was part of those Principles. Environmental Sustainability/Resource Protection: Ensure that interchange improvements occur in such a way that it minimizes environmental impacts to the greatest extent possible and protects the physical and natural environment in and around the interchange including but not limited to the Fossil Creek Reservoir Area. Subsequently, the City of Fort Collins and Town of Windsor have jointly agreed that the Project will mitigate wetland impacts at a 3:1 ratio, this meaning that the estimated 0.4 acres of impacts from the Project will be mitigated with the creation of 1.2 acres of new wetlands. STAFF RECOMMENDATION Staff recommends adoption of the Resolution. PUBLIC OUTREACH Staff of both municipalities held several stakeholder meetings most recently: April 21, 2011, August 10, 2011, October 27, 2011 as well as numerous individual meeting with stakeholder representatives. ATTACHMENTS 1. Vicinity Map [_ I-25 & 392 Interchange COUNTY ROAD 5 KECHTER 4TH MAIN MASON COUNTY ROAD 7 COUNTY ROAD 3 COUNTY ROAD 30 BOARDWALK BOYD LAKE 71ST 66TH COUNTY ROAD 36 COUNTY ROAD 9 COUNTY ROAD 13 FAIRGROUNDS COUNTY ROAD 11 COUNTY ROAD 11C TROUTMAN PRIVATE DRIVE COUNTY ROAD 34E 65TH TIMBERLINE COUNTY ROAD 30 COUNTY ROAD 3 COUNTY ROAD 30 S SHIELDS ST INTERSTATE 25 S COLLEGE AVE E TRILBY RD S COUNTY ROAD 5 E COUNTY ROAD 30 S LEMAY AVE S TIMBERLINE RD E HARMONY RD CARPENTER RD E COUNTY ROAD 32 KECHTER RD ZIEGLER RD W TRILBY RD E COUNTY ROAD 38 STATE HIGHWAY 392 W HARMONY RD MAIN ST STRAUSS CABIN RD S COUNTY ROAD 3F S COUNTY ROAD 7 S US HIGHWAY 287 S L EMAY AVE E COUNTY ROAD 32 ZIEGLER RD INTERSTATE 25 S TIMBERLINE RD Legend Fort Collins City Limits Growth Management Area E RESOLUTION 2012-118 APPROVING FEE AGREEMENTS BETWEEN THE CITY AND CERTAIN PROPERTY OWNERS IN THE COMMUNITY ACTIVITY CENTER ADJACENT TO THE INTERCHANGE AT INTERSTATE 25 AND STATE HIGHWAY 392 WHEREAS, by adoption of Ordinance No. 117, 2012, (the “Ordinance”) on November 6, 2012, the City Council has approved the imposition of a special fee (the “Fee”) to be paid by the owners of property within close proximity to the reconstructed interchange at the intersection of Interstate 25 and State Highway 392 (the “Interchange”); and WHEREAS, the purpose of the Fee is to help defray the costs incurred by the City in providing local funding for the Interchange reconstruction; and WHEREAS, Section 1(c)(1)a of the Ordinance, as amended by Ordinance No. 141, 2012, identifies the amounts to be paid by the owners of the properties within the City, or that may be annexed to the City, that are subject to the Fee; and WHEREAS, under Section 2 of the Ordinance, as amended, any property owner whose property is subject to the Fee has the option of paying the Fee by agreement, rather than under the Ordinance, as long as: (1) such agreement contains the terms and conditions specified in said Section 2; (2) the property owner notifies the City Manager in writing on or before November 30, 2012 of his or her intention to enter into the agreement; and (3) the agreement is approved by the City Council on or before December 31, 2012; and WHEREAS, City staff has prepared the form of two agreements that meet the requirements of Section 2 of the Ordinance, one for the owners of developed properties and the other for the owners of undeveloped properties; and WHEREAS, copies of those agreements are attached hereto as Exhibits “A” and “B” and incorporated herein by this reference (the “Agreements”); and WHEREAS, as of November 30, 2012, all of the property owners identified in Section 2 of the Ordinance had notified the City Manager in writing that they wish to enter into the Agreement; and Whereas, the names and amounts to be paid by each such property owner under the Agreement are shown on Exhibit “C,” attached hereto and incorporated herein by this reference; and WHEREAS, the City Council believes that it is in the best interests of the City to approve the execution of the proposed agreements between said property owners and the City. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the Mayor is hereby authorized and directed to enter into agreements with the property owners shown on Exhibit “C,” for payment of the amounts specified on such exhibit. Section 2. That the agreements to be executed by the Mayor shall be in substantially the form shown on Exhibits “A” and “B,” with such modifications in form or substance as the City Manager may, in consultation with the City Attorney, determine to be necessary or advisable to protect the interests of the City and effectuate the purposes of this Resolution and the Ordinance. Passed and adopted at a regular meeting of the Council of the City of Fort Collins this 18th day of December A.D. 2012. Mayor ATTEST: City Clerk - 1 - AGREEMENT CONCERNING THE FUNDING OF A CERTAIN PORTION OF THE COST OF THE IMPROVEMENTS TO THE INTERSTATE 25/COLORADO STATE HIGHWAY 392 INTERCHANGE (UNDEVELOPED PROPERTY) THIS AGREEMENT is entered into this day of , 2012, by and between the City of Fort Collins, Colorado, a Colorado home rule municipality (the “City”) and ________________________ (referred to hereinafter collectively as the “Property Owner”). RECITALS WHEREAS, on or about January 3, 2011, the City and the Town entered into an Intergovernmental Agreement (“the IGA”) concerning the funding and construction of improvements to the Interstate 25/State Highway 392 Interchange (“the Interchange”) and related enhancements (the “Local Enhancements”), collectively referred to herein as the “Improvements;” and WHEREAS, by adoption of Ordinance No. 118, 2012, the City Council later approved a First Amended Intergovernmental Agreement Pertaining to the Development of the Interstate 25/State Highway 392 Interchange (the “First Amended IGA”) restating and reaffirming those provisions of the Original IGA that the City and the Town desire to remain in full force and effect; and WHEREAS, in recognition of the special benefit that properties in close proximity to the Interchange will realize from the construction of the Improvements, including the increased capacity that the reconstruction and expansion of the Interchange will provide, the IGA states that a fee will be imposed by the City and the Town upon such property owners to recoup at least a portion of the funding that the City and the Town have contributed to make the Improvements possible (the “Local Share”); and WHEREAS, in recognition of the fact that the Windsor and Fort Collins communities as a whole will also benefit from the construction of the Improvements, the City and the Town have concluded that the amount of the fee to be assessed against said properties should be limited to fifty percent (50%) of the Local Share; and WHEREAS, the Property Owner is the owner of a parcel of undeveloped real property in the immediate vicinity of the Interchange; and WHEREAS, the City and the Property Owner have informally agreed on the amount and methodology for the assessment of the above-referenced fee, and by the terms of this Agreement desire to formally agree to same. NOW, THEREFORE, for and in consideration of the mutual covenants herein contained and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties agree as follows: EXHIBIT A - 2 - SECTION 1. DEFINITIONS In this Agreement, unless a different meaning clearly appears from the context, the following definitions shall apply: 1.1. “Agreement” means this Agreement and its attachments. 1.2. “City” means the City of Fort Collins, Colorado. 1.3. “Corridor Activity Center” or “CAC” means that area described on Exhibit “A,” attached hereto and incorporated herein by this reference. 1.4. “Development” shall have the meaning ascribed to that term in Section 5.1.2 of the City’s Land Use Code. 1.5. “Development Proposal” means any proposal to develop the Property under the applicable laws and regulations of the City or Larimer County. 1.6. “Effective Date” means January 1, 2013. 1.7. “Fee” means the fee to be paid by the Property Owner under the terms and conditions of this Agreement. 1.8. “Foster Study” means that document with attachments prepared by Foster Valuation, LLC, attached hereto as Exhibit “B” and incorporated herein by this reference. 1.9. “Interchange” means the Interstate 25 and State Highway 392 interchange. 1.10. “Interchange Improvements” means those improvements to the Interchange which constitute the Project. 1.11. “Improvements” means the Interchange Improvements and the Local Enhancements. 1.12. “Local Enhancements” means improvements to and near the Interchange that are being constructed and maintained by the Town and/or City and that are not part of the Project. 1.13. “Project” means the construction by CDOT of a new Interchange at Interstate Highway 25 and Colorado State Highway 392. 1.14. “Property” means that certain real property described on Exhibit “C,” attached hereto and incorporated herein. 1.15. “Redevelopment Proposal” means any application for the redevelopment of the Property. 1.16. “Town” means the Town of Windsor, Colorado. - 3 - SECTION 2. ASSESSMENT OF FEE 2.1 Assessment of Fee. The Property Owner agrees that there shall be a Fee assessed against the Property in the amount of $________ to help defray the costs of the Improvements, which amounts represents the Property Owners’ share of the cost of both the Interchange Improvements and the Local Enhancements. The Property Owner hereby acknowledges and agrees that the amount of the Fee is fair and reasonable in view of the special benefit that the Property will receive from the Improvements, and the increased amount of vehicular traffic that the future use of the Property will likely contribute to the Interchange. 2.2 Payment of Fee. The entire amount of the Fee shall be payable in full as a condition of the issuance of the first building permit for any improvements to be constructed pursuant to an approved Development proposal for the Property; provided, however, that in the event the approved development proposal and the subsequently issued building permit are for less than the entire Property, the amount of the Fee shall be proportionally reduced to reflect the amount of Property for which the building permit is issued, related to the entire Property. 2.3 Interest on assessed amount. Interest on the amount of the Fee shall begin to accrue on a compounded basis two (2) years after the Effective Date; provided, however, that there shall be no interest due in the event that the Fee is paid in full during the first two-year period. Once interest commences, it shall accrue at the rate of 2.35% per annum for a period of eight (8) years. Thereafter, interest shall accrue at the rate of 3.05% and shall continue at that rate until the Fee, plus all accrued interest, is paid in full. Once a year during each year of the term of this Agreement, the Property Owners shall have the right to prepay all or a portion of the Fee, including accrued interest thereon, by sending a written request to the City for a statement of accrued interest to date. 2.4 Notwithstanding any provision of this Agreement that may be construed to the contrary, in the event that the total amount of fee revenues paid to the City and the Town by or on behalf of the CAC Property Owners, either under the provisions of this Agreement or under the provisions of Ordinance No. _____, 2012 (the “Ordinance”), equals or exceeds the sum of Two Million Five Hundred Fifty Thousand Dollars ($2,550,000.00), plus interest accrued at the rate of 3.05% from the effective date of the Ordinance, all CAC Property Owners shall be relieved of any further obligation to make the payments to the City under this Agreement, notwithstanding the fact that all or a portion of the Fee may remain unpaid. SECTION 3. ONLY FEE TO BE ASSESSED It is understood and agreed that the City and Town shall, for a period of at least twenty-five (25) years from the Effective Date, assess no further fees or other charges upon the Property Owner related to the Improvements; provided, however, that nothing herein shall be deemed to preclude the City from charging development fees and costs generally applicable in the City and unrelated to the Improvements. In the event that this Section 3, or any part thereof, is held by a court of - 4 - competent jurisdiction to be illegal or otherwise unenforceable, then the Property Owner shall be entitled, during the term of this Agreement, to offset any and all amounts paid pursuant to the provisions of this Agreement against any new fee or other charge related to the Improvements. SECTION 4. NON-SIGNING PROPERTY OWNERS The City and the Property Owner acknowledge that there are a number of other property owners within the CAC who may choose not to sign this Agreement, although they have been afforded an opportunity to do so, and that the governing bodies of the City and Town have each enacted an ordinance within their respective jurisdictions imposing a separate fee upon such property owners for the purpose of recovering their fair share of the cost of the Improvements (the “Ordinance”). In the event that the City for any reason is unable to collect any portion of the fee imposed by the Ordinance upon such other property owners, that failure shall not increase the amount of the Fee due from the Property Owner under this Agreement, and the Property Owner shall not be liable to the City for any portion of the other property owners’ share of the cost of the Improvements. SECTION 5. WAIVER AND RELEASE In consideration of the concessions and compromises made by the City and reflected in this Agreement, the Property Owner, on its own behalf and on behalf of its officers, employees, agents, successors and assigns, hereby releases the City, its officers, employees, agents and assigns from, and waives, any and all present and future liability, claims, causes of action, losses, costs or expenses of any kind whatsoever arising from or in any way relating to the construction of the Improvements, including but not limited to the creation of the CAC benefit area, the findings of the Foster Study, the methodology used by the City to calculate the Fee, or the assessment of the Fee. SECTION 6. AGREEMENT NOT AFFECTED BY COLLATERAL LITIGATION The Property Owner has entered into this Agreement as an alternative to paying the fee imposed upon CAC Property Owners by the adoption of Ordinance No. 117, 2012 (the “Ordinance”), as permitted by the Ordinance. In the event that the fee imposed by the Ordinance becomes the subject of litigation, the parties agree that the outcome of that litigation shall not in any way affect the parties’ rights and obligations under this Agreement; provided, however, that this provision shall not be construed as preventing the parties from at any time amending the provisions of this Agreement in the manner provided in Section 7.1 below. SECTION 7. MISCELLANEOUS 7.1. Amendment. This Agreement is the entire and only agreement between the Parties regarding the assessment of fees for the Improvements. There are no promises, terms, conditions, or other obligations other than those contained in this Agreement. This Agreement may be amended only in writing signed by the City and the Property Owner. 7.2. Severability. Except as provided in this Agreement, if any part, term, or provision of this Agreement is held by a court of competent jurisdiction to be illegal or otherwise unenforceable, - 5 - such illegality or unenforceability will not affect the validity of any other part, term, or provision of this Agreement and the rights of the Parties will be construed as if that part, term, or provision was never part of this Agreement. 7.3. Colorado Law. This Agreement is made and delivered within the State of Colorado, and the laws of the State of Colorado will govern its interpretation, validity, and enforceability. 7.4. Jurisdiction of Courts. Personal jurisdiction and venue for any civil action commenced by any of the Parties to this Agreement for actions arising out of or relating to this Agreement will be the District Court of Larimer County, Colorado. 7.5. Representatives and Notice. Any notice or communication required or permitted under the terms of this Agreement will be in writing and may be given to the Parties or their respective legal counsel by (a) hand delivery; (b) deemed delivered three business days after being deposited in the United States mail, with adequate postage prepaid, and sent via registered or certified mail with return receipt requested; or (c) deemed delivered one business day after being deposited with an overnight courier service of national reputation have a delivery area of Northern Colorado, with the delivery charges prepaid. The representatives will be: If to the City: City Manager 300 LaPorte Avenue PO Box 580 Fort Collins, CO 80524 With a copy to City Attorney 300 LaPorte Avenue PO Box 580 Fort Collins, CO 80524 If to the Property Owner: 7.6. Good Faith. In the performance of this Agreement or in considering any requested approval, acceptance, or extension of time, the Parties agree that each will act in good faith and will not act unreasonably, arbitrarily, capriciously, or unreasonably withhold, condition or delay any approval, acceptance or extension of time required or requested pursuant to this Agreement. 7.7. Authorization. The Parties affirm and warrant that they are fully authorized to enter into and execute this Agreement, and all necessary action, notices, meetings, and hearings pursuant to any law required to authorize their execution of this Agreement have been made. 7.8. Execution in Counterparts. This Agreement may be executed in multiple counterparts, each of which will be deemed an original and all of which taken together will constitute one and the same agreement. - 6 - 7.9. No Third Party Beneficiary. It is expressly understood and agreed that the enforcement of the terms and conditions of this Agreement, and all rights of action relating to such enforcement, are strictly reserved to the Parties and nothing in this Agreement shall give or allow any claim or right or cause of action whatsoever by any other person not included in this Agreement. It is the express intention of the Parties that no person and/or entity, other than the Parties, receiving services or benefits under this Agreement shall be deemed any more than an incidental beneficiary only. 7.10. Recordation of Agreement. The City shall record a copy of this Agreement in the office of the Clerk and Recorder of Larimer County, Colorado. 7.11. Execution of Other Documents. The Parties agree to execute any additional documents and to take any additional actions necessary to carry out the terms of this Agreement. CITY OF FORT COLLINS ________________________________ Mayor ATTEST: _________________________________ City Clerk PROPERTY OWNER By: ___________________________________ - 7 - Legal Description goes here - 1 - AGREEMENT CONCERNING THE FUNDING OF A CERTAIN PORTION OF THE COST OF THE IMPROVEMENTS TO THE INTERSTATE 25/COLORADO STATE HIGHWAY 392 INTERCHANGE (DEVELOPED PROPERTY) THIS AGREEMENT is entered into this day of , 2012, by and between the City of Fort Collins, Colorado, a Colorado home rule municipality (the “City”) and ________________________ (referred to hereinafter collectively as the “Property Owner”). RECITALS WHEREAS, on or about January 3, 2011, the City and the Town entered into an Intergovernmental Agreement (“the IGA”) concerning the funding and construction of improvements to the Interstate 25/State Highway 392 Interchange (“the Interchange”) and related enhancements (the “Local Enhancements”), collectively referred to herein as the “Improvements;” and WHEREAS, by adoption of Ordinance No. 118, 2012, the City Council later approved a First Amended Intergovernmental Agreement Pertaining to the Development of the Interstate 25/State Highway 392 Interchange (the “First Amended IGA”) restating and reaffirming those provisions of the Original IGA that the City and the Town desire to remain in full force and effect; and WHEREAS, in recognition of the special benefit that properties in close proximity to the Interchange will realize from the construction of the Improvements, including the increased capacity that the reconstruction and expansion of the Interchange will provide, the IGA states that a fee will be imposed by the City and the Town upon such property owners to recoup at least a portion of the funding that the City and the Town have contributed to make the Improvements possible (the “Local Share”); and WHEREAS, in recognition of the fact that the Windsor and Fort Collins communities as a whole will also benefit from the construction of the Improvements, the City and the Town have concluded that the amount of the fee to be assessed against said properties should be limited to fifty percent (50%) of the Local Share; and WHEREAS, the Property Owner is the owner of a parcel of developed real property in the immediate vicinity of the Interchange; and WHEREAS, the City and the Property Owner have informally agreed on the amount and methodology for the assessment of the above-referenced fee, and by the terms of this Agreement desire to formally agree to same. NOW, THEREFORE, for and in consideration of the mutual covenants herein contained and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties agree as follows: EXHIBIT B - 2 - SECTION 1. DEFINITIONS In this Agreement, unless a different meaning clearly appears from the context, the following definitions shall apply: 1.1. “Agreement” means this Agreement and its attachments. 1.2. “City” means the City of Fort Collins, Colorado. 1.3. “Corridor Activity Center” or “CAC” means that area described on Exhibit “A,” attached hereto and incorporated herein by this reference. 1.4. “Effective Date” means January 1, 2013. 1.5. “Fee” means the fee to be paid by the Property Owner under the terms and conditions of this Agreement. 1.6. “Foster Study” means that document with attachments prepared by Foster Valuation, LLC, attached hereto as Exhibit “B” and incorporated herein by this reference. 1.7. “Interchange” means the Interstate 25 and State Highway 392 interchange. 1.8. “Interchange Improvements” means those improvements to the Interchange which constitute the Project. 1.9. “Improvements” means the Interchange Improvements and the Local Enhancements. 1.10. “Local Enhancements” means improvements to and near the Interchange that are being constructed and maintained by the Town and/or City and that are not part of the Project. 1.11. “Project” means the construction by CDOT of a new Interchange at Interstate Highway 25 and Colorado State Highway 392. 1.12. “Property” means that certain real property described on Exhibit “C,” attached hereto and incorporated herein. 1.13. “Redevelopment” shall have the meaning ascribed to that term in Section 5.1.2 of the City’s Land Use Code. 1.14. “Redevelopment Proposal” means any application for the redevelopment of the Property. 1.15. “Town” means the Town of Windsor, Colorado. SECTION 2. ASSESSMENT OF FEE 2.1 Assessment of Fee. The Property Owner agrees that there shall be a Fee assessed against the Property in the amount of $____________ to help defray the costs of Improvements, which amount represents the Property Owner’s share of the cost of both the Interchange Improvements and the Local Enhancements. The Property Owner hereby acknowledges - 3 - and agrees that the amount of the Fee is fair and reasonable in view of the special benefit that the Property will receive from the Improvements, and the increased amount of vehicular traffic that the use of the Property will likely contribute to the Interchange. 2.2 Payment of Fee. The entire amount of the Fee shall be payable as a condition of the issuance of the first building permit for any improvements to be constructed pursuant to an approved Redevelopment Proposal for the Property, but only if the amount of traffic that will be generated by the Property, as redeveloped under such Redevelopment Proposal, will increase by at least thirty-five percent (35%) the current volume of traffic on Property as of the Effective Date. In order that the projected increase in traffic generation under the Redevelopment Proposal may be determined for the purpose of this provision, the Redevelopment Proposal shall include a traffic study if deemed necessary by the Traffic Engineer of the City. 2.3 Interest on assessed amount. Interest on the amount of the Fee shall begin to accrue on a compounded basis two (2) years after the Effective Date; provided, however, that there shall be no interest due in the event that the Fee is paid in full during the first two-year period. Once interest commences, it shall accrue at the rate of 2.35% per annum for a period of eight (8) years. Thereafter, interest shall accrue at the rate of 3.05% and shall continue at that rate until the Fee, plus all accrued interest, is paid in full. Once a year during each year of the term of this Agreement, the Property Owners shall have the right to prepay all or a portion of the Fee, including accrued interest thereon, by sending a written request to the City for a statement of accrued interest to date.’ 2.4 Notwithstanding any provision of this Agreement that may be construed to the contrary, in the event that the total amount of fee revenues paid to the City and the Town by or on behalf of the CAC Property Owners, either under the provisions of this Agreement or under the provisions of Ordinance No. ___, 2012 (the “Ordinance”), equals or exceeds the sum of Two Million Five Hundred Fifty Thousand Dollars ($2,550,000.00), plus interest accrued at the rate of 3.05% from the effective date of the Ordinance, all CAC Property Owners shall be relieved of any further obligation to make payments to the City under this Agreement, notwithstanding the fact that all or a portion of the Fee may remain unpaid. SECTION 3. ONLY FEE TO BE ASSESSED It is understood and agreed that the City and Town shall, for a period of at least twenty-five (25) years from the Effective Date, assess no further fees or other charges upon the Property Owner related to the Improvements; provided, however, that nothing herein shall be deemed to preclude the City from charging development fees and costs generally applicable in the City and unrelated to the Improvements. In the event that this Section 3, or any part thereof, is held by a court of competent jurisdiction to be illegal or otherwise unenforceable, then the Property Owner shall be entitled, during the term of this Agreement, to offset any and all amounts paid pursuant to the provisions of this Agreement against any new fee or other charge related to the Improvements. - 4 - SECTION 4. NON-SIGNING PROPERTY OWNERS The City and the Property Owner acknowledge that there are a number of other property owners within the CAC who may choose not to sign this Agreement, although they have been afforded an opportunity to do so, and that the governing bodies of the City and Town have each enacted an ordinance within their respective jurisdictions imposing a separate fee upon such property owners for the purpose of recovering their fair share of the cost of the Improvements (the “Ordinance”). In the event that the City for any reason is unable to collect any portion of the fee imposed by the Ordinance upon such other property owners, that failure shall not increase the amount of the Fee due from the Property Owner under this Agreement, and the Property Owner shall not be liable to the City for any portion of the other property owners’ share of the cost of the Improvements. SECTION 5. WAIVER AND RELEASE In consideration of the concessions and compromises made by the City and reflected in this Agreement, the Property Owner, on its own behalf and on behalf of its officers, employees, agents, successors and assigns, hereby releases the City, its officers, employees, agents and assigns from, and waives, any and all present and future liability, claims, causes of action, losses, costs or expenses of any kind whatsoever arising from or in any way relating to the construction of the Improvements, including but not limited to the creation of the CAC benefit area, the findings of the Foster Study, the methodology used by the City to calculate the Fee, or the assessment of the Fee. SECTION 6. AGREEMENT NOT AFFECTED BY COLLATERAL LITIGATION The Property Owner has entered into this Agreement as an alternative to paying the fee imposed upon CAC Property Owners by the adoption of Ordinance No. 117, 2012 (the “Ordinance”), as permitted by the Ordinance. In the event that the fee imposed by the Ordinance becomes the subject of litigation, the outcome of that litigation shall not in any way affect the parties’ rights and obligations under this Agreement; provided, however, that this provision shall not be construed as preventing the parties from at any time amending the provisions of this Agreement in the manner provided in Section 7.1 below. SECTION 7. MISCELLANEOUS 7.1. Amendment. This Agreement is the entire and only agreement between the Parties regarding the assessment of fees for the Improvements. There are no promises, terms, conditions, or other obligations other than those contained in this Agreement. This Agreement may be amended only in writing signed by the City and the Property Owner. 7.2. Severability. Except as provided in this Agreement, if any part, term, or provision of this Agreement is held by a court of competent jurisdiction to be illegal or otherwise unenforceable, such illegality or unenforceability will not affect the validity of any other part, term, or provision of this Agreement, and the rights of the Parties will be construed as if that part, term, or provision was never part of this Agreement. - 5 - 7.3. Colorado Law. This Agreement is made and delivered within the State of Colorado, and the laws of the State of Colorado will govern its interpretation, validity, and enforceability. 7.4. Jurisdiction of Courts. Personal jurisdiction and venue for any civil action commenced by any of the Parties to this Agreement for actions arising out of or relating to this Agreement will be the District Court of Larimer County, Colorado. 7.5. Representatives and Notice. Any notice or communication required or permitted under the terms of this Agreement will be in writing and may be given to the Parties or their respective legal counsel by (a) hand delivery; (b) deemed delivered three business days after being deposited in the United States mail, with adequate postage prepaid, and sent via registered or certified mail with return receipt requested; or (c) deemed delivered one business day after being deposited with an overnight courier service of national reputation have a delivery area of Northern Colorado, with the delivery charges prepaid. The representatives will be: If to the City: City Manager 300 LaPorte Avenue PO Box 580 Fort Collins, CO 80524 With a copy to City Attorney 300 LaPorte Avenue PO Box 580 Fort Collins, CO 80524 If to the Property Owner: 7.6. Good Faith. In the performance of this Agreement or in considering any requested approval, acceptance, or extension of time, the Parties agree that each will act in good faith and will not act unreasonably, arbitrarily, capriciously, or unreasonably withhold, condition or delay any approval, acceptance or extension of time required or requested pursuant to this Agreement. 7.7. Authorization. The Parties affirm and warrant that they are fully authorized to enter into and execute this Agreement, and all necessary action, notices, meetings, and hearings pursuant to any law required to authorize their execution of this Agreement have been made. 7.8. Execution in Counterparts. This Agreement may be executed in multiple counterparts, each of which will be deemed an original and all of which taken together will constitute one and the same agreement. 7.9. No Third Party Beneficiary. It is expressly understood and agreed that the enforcement of the terms and conditions of this Agreement, and all rights of action relating to such enforcement, are strictly reserved to the Parties and nothing in this Agreement shall give or allow - 6 - any claim or right or cause of action whatsoever by any other person not included in this Agreement. It is the express intention of the Parties that no person and/or entity, other than the Parties, receiving services or benefits under this Agreement shall be deemed any more than an incidental beneficiary only. 7.10. Recordation of Agreement. The City shall record a copy of this Agreement in the office of the Clerk and Recorder of Larimer County, Colorado. 7.11. Execution of Other Documents. The Parties agree to execute any additional documents and to take any additional actions necessary to carry out the terms of this Agreement. CITY OF FORT COLLINS ________________________________ Mayor ATTEST: _________________________________ City Clerk PROPERTY OWNER By: ___________________________________ - 7 - Legal Description goes here GROSS DEVELOPABLE TOTAL TOTAL LAND AREA LAND AREA FEE/SF FEE ZONE A 86150-00-007 INTERSTATE LAND HOLDINGS, LLC 645,519 297,910 $0.28 $82,961 86220-00-014 VPD392/PRATO, LLC 186,550 186,550 $0.28 $51,950 ZONE B 86222-47-701&2 LODGEPOLE INVESTMENTS, LLC 578,912 578,912 $0.21 $120,910 ZONE B - 1 86150-00-009 B3 VENTURES LLC 407,722 336,499 $0.21 $70,280 ZONE C 86150-00-005 FOSSIL POINT, LLC 1,026,879 955,151 $0.12 $110,828 86150-00-013 BURNETTE/YOUNG INVESTMENTS 939,698 587,429 $0.12 $68,160 86220-00-014 VPD392/PRATO, LLC 1,041,071 596,500 $0.12 $69,213 86222-47-701 LODGEPOLE INVESTMENTS, LLC 244,668 81,404 $0.12 $9,445 86222-47-702 LODGEPOLE INVESTMENTS, LLC 903,159 681,468 $0.12 $79,072 86220-00-017 VAN CLEAVE, TERRY/MARY 1,690,254 1,558,217 $0.12 $180,802 Larimer County Parcel # OWNER EXHIBIT C ATTACHMENT 1